Farber v. Olkon , 40 Cal. 2d 503 ( 1953 )

CARTER, J.

I dissent.

I cannot agree with the majority that the doctrine of res ipsa loquitur may not be invoked by the plaintiff in this appalling case. If ever a situation existed where it was more applicable it has not been called to my attention. We have here a patient, mentally deficient, undergoing shock treatments to relieve that mental condition, emerging with both femur bones broken and a resulting permanent physical deformity.

In Ybarra v. Spangard, 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258], this court said: “The doctrine of res ipsa loquitur has three conditions: ‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ (Prosser, Torts, p. 295.) It is applied in a wide variety of situations, including cases of medical or dental treatment and hospital care. (Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409] ; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134] ; Moore v. Steen, 102 Cal.App. 723 [283 P. 833] ; Armstrong v. Wallace, 8 Cal.App.2d 429 [47 P.2d 740] ; Meyer v. McNutt Hospital, 173 Cal. 156 [159 P. 436]; Vergeldt v. Hartzell, 1 F.2d 633; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228] ; Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425] ; see Shain, Res Ipsa Loquitur, 17 So.Cal.L.Rev. 187, 196.)

“There is, however, some uncertainty as to the extent to which res ipsa loquitur may be invoked in eases of injury from medical treatment. This is in part due to the tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose. The result has been that a simple, understandable rule of circumstantial evidence, with a sound background of common sense and human experience, has occasionally been transformed into a rigid legal formula, which arbitrarily precludes its application in many cases where it is most important that it should be applied. If the doctrine is to continue to serve a useful purpose, we should not forget that ‘the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.’ (9 Wigmore, Evidence [3d ed.], § 2509, p. 382. . . .” (Emphasis added.)

In the Ybarra case, the plaintiff was to have an appendectomy. He emerged from the anesthetic with an injured shoulder from which he developed a paralysis and atrophy of the muscles surrounding it. This case the majority seeks to distinguish on the ground that he received injury to a healthy part of his body not within the area to be covered by the operation. Does not that same fact prevail here? Plaintiff was to be treated for a mental condition and emerged with fractured femurs.

To say that the doctrine was applicable and an instruction thereon should have been given, is not to say that every time the doctrine is invoked, the person relying thereon is entitled to recover damages. All that the law requires is, that the defendant charged with negligence rebut the inference of negligence by giving a reasonable explanation of the cause of the injury. This is as it should be in a situation where the instrumentality causing the injury is within the exclusive control of the defendant, or his' agents, and particularly so where, as here, a plaintiff was unconscious and, even had he not been mentally incompetent, completely unable to testify as to what occurred. As was said in the Ybarra case “the particular force and justice of the rule . . . consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him [the defendant] but inaccessible to the injured person.” (Emphasis added.)

With respect to the confusion as to whether there had been two or three nurses holding plaintiff on the table during the shock treatment, I cannot refrain from noting with amusement, a quotation from the testimony of defendant, Dr. Wayne. He is reported as saying, in part, “I think it would have been possible to use two nurses, as I check matters before and since. In other words, a question of two or three here is not a crucial question. ...” (Emphasis added.) Since when has it been necessary for a defendant to point ont to a court and jury what is a crucial question in a case ?

I am also amused at the statement in the majority opinion that “Pathetic and heartrendingly grievous as is the plight of plaintiff—and his loyal father—there appears no basis whereby at law and in justice the defendants sued herein can be held to have violated a duty or to be accountable to plaintiff in damages.” As I have heretofore pointed out, invocation of the doctrine of res ipsa loquitur in a case such as this is not only proper, but the fair, just and equitable thing to do. And, had the doctrine been invoked, and an instruction given thereon, the heartbroken majority of this court would merely have been declaring the law, not transgressing it.

I would reverse the judgment in the hope that justice might be done on a retrial of the cause.